Talk-radio case heard by state high court

OLYMPIA — The state Supreme Court heard arguments Thursday on a case that has drawn national attention from groups that say the free-speech rights of talk-radio hosts and other commentators are being trampled.

At the center of the dispute are John Carlson and Kirby Wilbur, conservative talk-radio hosts for KVI who last spring ran an extensive on-air campaign for an initiative to overturn the biggest gas-tax increase in state history.

The initiative ultimately failed. But the legal fight over the anti-gas-tax crusade could set new boundaries for talk-radio hosts and determine at what point political speech becomes political advertising that can be regulated by the government.

Groups ranging from the American Civil Liberties Union to the Cato Institute, a libertarian think tank, oppose a lower court ruling that Carlson's and Wilbur's talk-radio campaign amounted to an in-kind political contribution to the gas-tax opponents.

If the ruling is allowed to stand, "it would give the government the power to micromanage and second-guess the editorial judgment of the press," William Maurer, an Institute for Justice attorney who represents the anti-gas-tax group, told the Supreme Court.

But the government lawyers who brought the case say reversing the ruling could open the door for powerful media corporations to become "king makers" by mounting unregulated political campaigns.

"In this case there was no limitation on anyone's right to speak," Mike Vaska, a Seattle attorney who represents four municipalities in the appeal, said in an interview this week. "The only requirement that came out of the case was that the people be informed about who was funding the campaign."

The case stems from a lawsuit filed by San Juan County and the cities of Seattle, Auburn and Kent last year against Nonewgastax.com, the group backing Initiative 912, which was aimed at repealing a new 9.5-cent gasoline-tax increase.

Carlson and Wilbur promoted the initiative vigorously on KVI, asking listeners to collect signatures and donate money to the effort. Many of their on-air remarks suggested they were launching the initiative.

Last year, Thurston County Superior Court Judge Chris Wickham ordered that the I-912 committee had to disclose the on-air pitches as in-kind contributions from Fisher Communications, which owns KVI.

The I-912 campaign filed a countersuit, accusing the municipalities of infringing on the radio hosts' First Amendment rights. But Wickham dismissed the counterclaim, saying that Wilbur's and Carlson's close ties to the initiative rendered their on-air solicitations political contributions.

The ruling sent "shock waves" through the talk-radio industry, said Brian Maloney, a former KVI host who now runs Radio Equalizer, a Web site that focuses on talk radio.

"If it's allowed to stand... , it would be a devastating blow for freedom of speech on the radio," Maloney said.

During Thursday's Supreme Court hearing, Justices Jim Johnson and Richard Sanders — the court's most outspoken conservatives — peppered Vaska with questions and comments about the validity of the municipalities' case.

But attorneys for both sides say there was no way to read how the court might rule. A decision could take weeks or months.

Aside from the ACLU and the Institute for Justice, a libertarian public-interest law firm, several other groups are opposing Wickham's ruling, including Washington State Association of Broadcasters and the Building Industry Association of Washington.

They paint the ruling as part of a growing trend nationwide in which the political establishment is using campaign finance laws to muzzle dissenters.

Attorneys for the municipalities say the ruling is being misconstrued. They point out that Wickham merely required the campaign to disclose the in-kind contributions from Carlson and Wilbur — and didn't set any limits.

But the Institute for Justice argues that, by defining radio talk as campaign contributions, Wickham imposed de facto limits on how much the hosts could say on the air. That's because, under state law, initiative campaigns are barred from accepting donations larger than $5,000 during the final 21 days before an election.

Though Wickham's initial ruling only required disclosure of the KVI hosts' "contributions" during the signature-gathering phase, the I-912 campaign went beyond that. To make a point, any time a media outlet did stories or editorials about the initiative, the campaign assigned dollar values to the news items and listed them as contributors.

Under state law, news stories and editorials are not considered contributions if they appear in news outlets not controlled by a candidate or campaign committee. Maurer told the Supreme Court that all speech by talk-radio hosts should fall under that exemption.

But the municipalities argue that Carlson and Wilbur crossed the line by becoming "principals" in the I-912 campaign.

"They asked their listeners to go to the Web site and make a contribution," Vaska said in an interview. "They told reporters they had hired lawyers and were working on the language of the campaign. That all demonstrates a level of control and involvement that would make them officers and or agents of the campaign."

Carlson denies that he and Wilbur were initiative sponsors or organizers.

"No doubt about it, we crusaded for this and supported the campaign from its infancy," Carlson said. "But crusading for a cause is not the same as administering a campaign."

Ralph Thomas: 360-943-9882 or rthomas@seattletimes.com